Michael McDowell (Dublin South East, Progressive Democrats)

I am pleased to present the Criminal Justice (Public Order) Bill 2002. This is much awaited draft legislation. The phrase "much awaited" rankles slightly because it has been a long time going through the system to this point. It is badly needed legislation and I hope its passage through the House will be more expeditious than its passage through the Lower House.

The Bill deals with an area which is of major public concern, particularly to those living in urban areas, as well as those who frequent and socialise in certain parts of our capital city and other cities and towns. The Bill passed all Stages in the Dáil on 16 April 2003, having received detailed attention on Committee and Report Stages. It has been amended in some important respects and I will outline the position in this regard for the information of the House later in my contribution.

The Bill is designed to increase Garda powers and thus afford a greater degree of safety and protection to people who may wish to go about their business late at night – particularly at weekends – and not become the victims of unprovoked attacks by drunken and disorderly louts who are out to cause trouble. I do not have to tell the House about the drink culture that has developed here, particularly in the past decade. All reasonable, law-abiding people acknowledge that the increase of public disorder and alcohol fuelled violence is reprehensible and unacceptable.

There is greater awareness now of the extent of alcohol-related disturbance and nuisances in our society. As the report on public order offences – commissioned by the National Crime Council and published last Friday – notes, the number of offences proceeded with under the Criminal Justice (Public Order) Act 1994 increased by 160% in the period 1996 to 2001, with the most frequently invoked sections relating to intoxication in a public place and using threatening, abusive or insulting behaviour. That confirms what we already know from the evidence of our own eyes and from the daily media reports that incidents of public disorder are strongly linked with the irresponsible use of alcohol, particularly among young people. Furthermore, that report is not concerned with the depredations inextricably linked to drunken thuggery which leaves a trail of broken bodies and lives.

As Minister with responsibility for criminal law and liquor licensing law, I have major concerns about the implications of a drink culture for public order and civil society. I echo many of the things the President said recently in that regard. The statistics have shown, beyond contradiction, that alcohol abuse is the single most important element in public order offences. In recent years, one of the most disturbing developments on our streets is the mindless and vicious attacks carried out at random on innocent and inoffensive strangers. The majority of those attacks take place late at night outside certain venues, such as nightclubs, licensed premises and fast food outlets, at which large numbers of people congregate and where there is potential for disorder. The culture which has emerged in the past ten years – probably due to greed in certain service sections of society, to affluence, to changing lifestyles and to the availability of more disposable income – has allowed excessive drinking to occur which, unfortunately, is leading to a reduction in the quality of our lives.

The purpose of the Bill is to strengthen substantially the law and the the Garda Síochána to enable the latter to deal more effectively with the growing problem of late night street violence and disruption in so far as it may have its origins in alcohol abuse and its manifestations outside licensed premises of all types or fast food outlets. The Bill applies to pubs, off-licences, discos, nightclubs, dance venues of all types, amusement arcades, chip shops, take aways and mobile food vehicles. We know these types of premises act as a focus for aggravated drunkenness and the use of threatening, insulting or abusive behaviour by alcohol fuelled males and females who are looking for trouble at the slightest provocation and, it also seems, sometimes without it. The Garda has strong powers in respect of public order matters in general under the 1994 Act. However, it must be accepted there is now a need to add to these powers.

The first key provision in the Bill is to strengthen existing Garda powers in so far as it will allow gardaí to apply to the District Court for a closure order which will have the effect of limiting the hours of opening of particular premises. Under a closure order, the premises in question may be restricted from opening for business for certain times and periods as the court may determine for the purposes of avoiding disorder either on or in the vicinity of the premises and involving persons who were on the premises. This will only arise where the proprietor of an establishment has failed to act on a prior formal Garda warning to take steps within his or her control to eliminate the problem.

The second key provision in the Bill applies to persons who may be convicted of a public order street related offence under certain provisions of the 1994 Act. The Bill will allow the District Court to impose the additional sanction of an exclusion order. This order will prohibit the person from entering or being in the vicinity of specified premises outside which the incident giving rise to the original incident occurred for a period of up to 12 months. A breach of this order will be a serious offence punishable by a substantial fine or a term of imprisonment. If a person has to serve a term of imprisonment for the particular offence under the 1994 Act, the term of the exclusion order will apply immediately from the date of release.

The Government is determined to tackle the serious problem of drunken street violence across a number of fronts. The National Crime Council, to which I pay tribute, has endorsed the findings in the report of the strategic task force on alcohol of May 2002. I have already announced my intention to introduce legislative proposals to bring forward shortly a new intoxicating liquor Bill which will respond to certain of that report's recommendations as well as those contained in the reports of the Liquor Licensing Commission.

The Bill to which I refer, which will come before the Lower House during the current session, will include stronger penalties in respect of the sale and supply of liquor to drunken persons and drunkenness on licensed premises. There will be stronger provisions with regard to the maintenance of order and prohibition of riotous behaviour and disorderly conduct on licensed premises. There will be a prohibition on promotional practices which lead to excessive consumption of alcohol on licensed premises and an extension of enforcement powers under the existing law to non-uniformed gardaí.

Provision will be made for the wider use of temporary closure orders, closing time on Thursday nights will be brought back to 11.30 p.m. and there will be a new provision to allow local authorities to pass a motion in relation to an application for an exemption which will have to be taken into account by the court in deciding applications for special exemption orders. This will allow local elected representatives to play a key role in guiding the hands of local judiciary in deciding on policy matters relating to the opening hours of licensed premises and where they should operate. They cannot dictate to a judge on what he or she can or cannot do. Such a provision, if it gave blanket power, might be used excessively or discriminate between one premises and another. The Bill will produce a new system whereby it will be open to any town council, county council or city council to lay down a policy framework to which the local judiciary will be required to have regard or follow to the letter.

The provision of entertainment during a period of drinking up time will be prohibited. I recently met gardaí in Cork who told me that they had to persuade night club owners to tone down or eliminate music for the last half hour in order that people did not go out onto the street fuelled with alcohol and music pulsing in their ears. It is credit worthy that they have taken this step without a legislative basis. The Garda in Cork has taken a partnership approach – I am very impressed by it – involving all the stakeholders in the entertainment industry, backed by the Judiciary, to ensure disorder is tackled. I congratulate Cork gardaí for their work in that regard.

Licensees will be permitted to exclude children under 15 years of age from their premises and also have discretion to exclude young persons aged 15, 16 and 17 years at any or all times. Persons under the age of 24 years will be required to carry and produce proof of age if they wish to be served in a licensed premises.

I will now deal in some detail with the sections of the Bill. Section 1 is a standard provision which sets out the short title and provides for the collective citations of the Bill and Acts whose provisions are affected by it. The Bill will come into operation one month after the date of its passing. I reiterate again that the sooner it is passed the better. It is not a complex Bill. It was criticised in another place for its brevity and lack of content. There is no reason it should be delayed any further. Technical amendments were made to section 1 in the other House.

Section 2 contains standard provisions providing for necessary interpretation and defines certain terms used in the Bill. Its provisions apply to "catering premises" which are defined as any premises licensed under the Licensing Acts 1883 to 2000, the Registration of Clubs Acts 1904 to 2000, the Public Dance Halls Acts 1935 and 1997, the Gaming and Lotteries Acts 1956 to 1986, and any food outlet used for the sale of food, including take-aways, fixed or mobile. Thus, the Bill will apply to pubs, off-licences, night clubs, dance venues of all types, amusement arcades, chip shops, take-aways and mobile food vans. The terms "licensed premises" and "licensee" have particular meanings for the purposes of the Bill and are somewhat wider in scope than when normally used in the context of the liquor licensing code. Some technical changes were also made to this section on Committee Stage in the Dáil.

Section 3 enables the District Court to make an exclusion order as an additional penalty where a person is convicted of certain public order offences under the Criminal Justice (Public Order) Act 1994. The relevant offences are intoxication in a public place, section 4; disorderly conduct in a public place, section 5; threatening, abusive or insulting behaviour, section 6; distribution or display of offensive material, section 7; failure to comply with a Garda direction, section 8, and, wilful obstruction, section 9.

An exclusion order prohibits a person from entering or being in the vicinity of specified premises for a period of up to 12 months. If a term of imprisonment has been imposed for the offence for which he or she is convicted, the order will take effect immediately after he or she is released from prison. The governor or person in charge of a place of detention shall notify the Garda Commissioner when such a person is to be released in order that the order can be applied from that date.

The section was amended by the addition of subsection (5) to make it clear that an exclusion may be appealed to the Circuit Court. Breach of an exclusion order will be an offence. An order may only be imposed for offences committed after the commencement of the Bill. In other words, the new sanction cannot be imposed retrospectively.

Under section 4, a member of the Garda Síochána not below the rank of inspector may apply to the District Court for a closure order to restrict the opening hours of a premises covered by the Bill. Before an application for a closure order can be made, there must either have been disorder on the premises or in its vicinity or excessive noise emanating from the premises or its vicinity, and such disorder or noise must be likely to recur. The disorder or noise must involve persons who were on the premises. The noise criterion has been drafted to ensure it exceeds what would normally be regarded as acceptable or reasonable in the circumstances. The term "in the vicinity" is defined as not exceeding a distance of 100 metres from the premises involved. In addition, before making an application for a closure order, the garda involved must have informed the licensee of the premises that disorder or excessive noise has occurred and requested that he or she take such action within his or her control to prevent a recurrence. A notice of an application for a closure order must be either served personally by the Garda Siochána or by registered post. This aspect was the subject of much debate in the Dáil where I introduced an amendment on Report Stage to clarify the position. A maximum of seven days is allowed for the licensee to rectify the problem. The owner or operator of the premises shall be given notice of the intention to apply for a closure order.

Section 5 deals with the grounds on which closure orders may be made, their application and related provisions. The court must be satisfied that disorder or noise has occurred and that the making of the closure order is necessary to prevent a recurrence. An order could require a premises to close earlier than would otherwise be permitted on a particular day or days, or for a certain period, or require the premises to be closed completely for a period not exceeding seven days. In the case of a subsequent order having to be made, the premises could be closed for a period not exceeding 30 days.

When making a closure order, the court may specify that the licensee within a specified period will have to fulfil certain requirements, for example, the installation of a CCTV system, or restrictions on the type of substances to be sold, or limits placed on the numbers of persons which may be admitted to the premises in question. If a licensee fails to comply with an order of the court, a fine of €650 and-or imprisonment for a period not exceeding three months will be incurred. In considering whether to make a closure order, the court can take into account the conduct of the licensee, manager or employees in relation to the operation of the premises. An order may apply to the whole or part of the premises and shall specify the ground or grounds on which it was made. It shall come into effect when written notice has been served on the licensee or manager of the premises.

A notice specifying the closure times and the grounds for the closure order must be affixed to the premises in a prominent position. It shall be an offence not to display such a notice with a fine for a first offence of €300 and up to €600 for a second or subsequent offence. Employees of the premises will not be disadvantaged in their employment during the period of closure. This section was also the subject of amendment on Report Stage in the Dáil.

Section 6 provides for the right of appeal to the Circuit Court against the making of a closure order. To ensure the overall effectiveness of an order, the lodgement of an appeal will not affect the coming into operation of the order unless the Circuit Court decides accordingly within seven days from the date the order was made. This will suspend the order pending the hearing of the appeal.

Section 7 provides for the extension of a closure order. The court may extend the order with any such variation as it sees fit.

Under section 8, a person who permits his or her premises to be open in breach of a closure order will incur a fine of €3,000 or imprisonment for a term not exceeding six months or both. It will be an offence for a person to be found on a catering premises in breach of a closure order unless he or she can show that the requisite notice was not affixed to the exterior of the premises. It shall also be an offence to fail to leave a catering premises when requested to do so by a member of the Garda Síochána.

Section 9 is a technical provision relating to the liability of bodies corporate. Section 10 is a standard technical provision which provides for the jurisdiction of the District Court and Circuit Court in relation to the Bill which I commend to the House. I shall listen with interest to the contributions of Senators from all sides.

The passage of the legislation through the Lower House was so slow that, in the interim, some thoughts occurred to me about how related amendments to the law in this area could be brought forward. One of these, about which I spoke publicly in recent days, in light of the National Crime Council report, is the possibility that, where the Probation of Offenders Act is correctly applied by District Court judges who are unwilling to record convictions, the person against whom the facts have been proven, but who has not been convicted, should be liable to pay a substantial sum by way of defrayment of the costs of the entire procedure. It will, therefore, not be merely a polite slap on the wrist. Some of the costs to the society of such behaviour should be borne by these people, even though they will not be convicted under the Probation Act.

My second proposal is not addressed in the Bill because if I was to introduce amendments, I would be obliged to return to the Lower House and it might be next year before I returned with it to the Seanad. I propose to consider whether, in the case of minor disorder offences, as an alternative to going before the courts, a written caution document might not be issued to people who have been arrested in incidents of minor disorder, indicating that if they pay a fixed penalty of, for example, €300, a prosecution against them under the Act will not follow. This is a variant of what British Prime Minister, Tony Blair, spoke about at one stage, namely, the notion of on-the-spot fines. His project was over-ambitious, under which police constables in London could bring misbehaving louts to ATM machines and force them to pay up on the spot. With the greatest respect to Mr. Blair, if that was applied in this country it could lead to great misunderstandings, as gardaí escorted people to cash machines to extract money. However, the principle is correct.

In view of the delays in the District Court system, we do not want to clog it up further by requiring gardaí to return three or four months after offences have been committed to take part in a hearing on what, in effect, are incidents of extreme bad manners or loutishness. This is particularly true when the same result could be achieved by issuing a formal caution and extracting from the person a payment in lieu of prosecution. It would be an on-the-spot fine which would not quite be imposed on the spot but would arrive on their doorstep at a later date. This would be particularly good in the case of young people because they would be obliged to explain their actions at home. Such fines might have just as cautionary an effect as actual court proceedings. I may be able to deal with that in the forthcoming intoxicating liquor Bill or some other legislation to be published in the coming weeks.

One of the problems with the slow pace of legislation is that, as matters progress, one begins to feel that one has missed opportunities. The Bill took 11 months to go through one House of the Oireachtas. The idea of returning there with it makes the heart wilt, if I may say that about the House of which I am a Member. It is a modest Bill and there is no "rocket science" involved in it. It is designed to make it clear to the people who run these kind of premises, that they have a responsibility. The precedent set in Cork city – where the Garda, the Judiciary and the stakeholders in the entertainment industry, all understand that they are partners in maintaining public order and where customers know that such a partnership approach exists – is the best model. Such a partnership is unlikely to be of value in every case unless powers similar to those contained in the Bill are employed.

With regard to people who are careless, negligent or oblivious to the implications of what occurs on their premises, under the Bill the Garda will have the power to regulate their activities and force them to adopt reasonable standards for the maintenance of public order. Whether it is through the work of security staff, closed circuit television or other arrangements concerning the substances sold or the volume of music, it seems that this legislation will immeasurably strengthen the Garda Síochána in dealing with what, I hope, will be a minority of participants in the entertainment industry who might feel tempted to ignore reasonable request from gardaí as to how their premises should be run.

I hope that the time will come when the Garda will make much better use of hand-held videos in order to prevent arguments in the District Court about the scenes individual gardaí describe. Members of the force should able to show footage of what they witnessed in a particular nightclub either to a District Court judge or, alternatively, to the owner of the premises in question and inform them that the footage will be shown in court if matters go that far. This may prevent the case going before the court and ensure that reasonable steps are taken to ensure that public disorder does not recur.

My focal scaradh is this: in the event that people are of the view – particularly in the light of the National Crime Council report – that we are engaged in a hopeless battle against public disorder, I assure them that this is not the case. Senators will be aware that I recently published headline crime figures – they now become available in a very timely fashion – for the first quarter of this year. Since then, I had a conversation with the Garda Commissioner who informed me public order offences are decreasing. That is a hopeful sign and it may be due to different attitudes, publicity, public debate on the issue – I thank Members of both House for their contributions in that regard – or television programmes such as "Prime Time". There is a downward trend in public disorder at the moment. As one swallow does not make a summer, so the figures for one quarter should not necessarily be leapt upon as evidence that our problems are over. In the event that Senators are of the view that our task is hopeless and that we are going nowhere, I assure them that this is not the case. There is cause for optimism.

I attended an interesting party political seminar in my constituency last night, at which a leading economist provided some interesting figures. It may worry Senator Bohan slightly, but there has been a decline of 7% in the buoyancy of pub receipts during the past year. I was informed after the meeting that, by contrast, off-licences are doing better. It may be that there has been a change in behaviour. I do not say with any sense of gloating about what is happening to vintners, but there are changes afoot. I wanted to inform Senators about these trends, rather than having the debate proceed on the basis that nothing can be done and that the situation is hopelessly out of control.